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Afghan Detainees panel: Memorandum of Understanding Signed - 15 June 2010 - English - Establishing AdHoc Committee of Afghan Detainees

Afghan Detainees panel: Memorandum of Understanding Signed - 15 June 2010 - English - Establishing AdHoc Committee of Afghan Detainees

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Published by: CBCPolitics on Jun 22, 2011
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06/22/2011

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Confidential
Memorandum
of
Understanding
betweenThe Right Honourable Stephen Harper, Prime MinisterandThe Honourable Michael Ignatieff, Leader
of
the Official OppositionandGilles Duceppe, Leader
of
the Bloc Quebecois
I.
Recognizing that the House
of
Commons adopted an Order
on
December 10, 2009 for the production
of
Government documents related to thetransfer
of
Afghan detainees from the Canadian Forces to Afghan authoritieswhich contain information the disclosure
of
which would be injurious to nationaldefence, international relations or national security
if
publicly released and whichmade no provision for confidential treatment
of
the material.II. Recognizing that the Speaker
of
the House
of
Commons,
in
his ruling
of
April 27,2010, concluded that it is within the powers
of
the House
of
Commons to ask forthe documents sought in that Order and suggested that a mechanism
be
put inplace by which these documents could
be
made available to the House withoutcompromising the security and confidentiality
of
the information they contain.III. Recognizing that the Speaker stated in his ruling that: "the House and thegovernment have, essentially, an unbroken record
of
some 140 years
of
collaboration and accommodation in cases
of
this kind" and further that "TheHouse has long understood the role
ofthe
government as 'defender
of
the realm'and its heavy responsibilities in matters
of
security, national defence andinternational relations. Similarly, the government understands the House'sundoubted role as the 'grand inquest
of
the nation' and its need for complete andaccurate information in order to fulfil its duty
of
holding the government toaccount."IV. Recognizing that Cabinet confidences and information subject to solicitor-clientprivilege are classes
of
information that the Parliament
of
Canada has longrecognized are sensitive and may require protection from disclosure.
 
ConfidentialIn order to comply with the Order
of
the House
of
Commons from December 10,2009,and further to the Agreement
in
Principle reached by all parties on May 14, 20 I 0, theparties agree as
fol.lows:
1. 
An
ad
hoc
committee
of
parliamentarians will be established external
to
theHouse
of
Commons and consisting
off.
hiHW@.f
itrilJ.g
one Member
of
-t-
Parliament designated
by
the leaders
of
the governing party and each opposition
'S'\
j
V\a...l
6 (
'I
party with recognized status in the House
of
Commons. Each party may /designate one alternate Member
of
Parliament who may act as a replacement
of
amember
of
the
ad
hoc
committee when that member is absent; no more than one
~
Member from each party can participate in the
ad
hoc
committee at a given time.
~
2. 
The
ad
hoc
committee will have access to all documents listed in the House Order 
of
December
10,2009
including all relevant documents related to the transfer
of
Afghan detainees from the period 2001 to 2005 in order to understand the transfer arrangements post-200S, pursuant to the following confidentiality measures: a. access
to
the documents
is
conditional on each Member signing a confidentiality undertaking and taking an oath
of
confidentiality, as prescribed hereinafter; b. each Member, before receiving access to documents, will obtain a securityclearance at the "Secret" level;c. access
to
documents shall take place at a secure location under the control
of
the Government
of
Canada, subject to the following security conditionson access to, and the handling of, classified materials:Members
of
the
ad
hoc
committee will be required to provideidentification;
no
staff
of
the Members are to be included;
no
electronic, photographic, cellular or recording devices arepermitted;
no
materials are to be removed from the designated location;no copies
of
materials are permitted
to
be made;
no
notes are permitted to be removed from the location at any time;andany notes made by Members
of
the
ad
hoc
committee may only beaccessed
by
the author
of
those notes or his or her alternate and anysuch notes shall be destroyed six months after the completion
of
thereview
of
documents;
d. 
the review
of
documents
is
to take place with all the procedural protections normally accorded
to
in camera
proceedings, including a ban on the publication
of
the proceedings and on the disclosure, directly
or
indirectly,
of
any information which
is
protected from disclosure; and 
2
 
Confidential
e. 
any Member violating the confidentiality
of
the information will beimmediately expelled from the
ad
hoc
committee by the Panel
of
Arbitersestablished
in
paragraph 6, with
no
other Member
of
Parliament permitted
to
be substituted in the place
of
that expelled Member.
3. 
In order to understand what information has been protected from disclosure forthe purpose
of
national security, nationa:t defence and international relations andshall not be disclosed
by
Members, the Members will be provided access todocuments in both redacted and non-redacted form.4. Any support required by the
ad
hoc
committee will be provided
by
an ongoinggroup
of
public servants with the appropriate security clearances and subjectmatter expertise. The group
of
public servants, from the relevant departments,will provide briefings and contextual information initially, and then as necessary,to the
ad
hoc
committee to assist Members in carrying out their work and tounderstand the security implications and reasons for protecting certaininformation from disclosure.
5. 
With respect to every document that has been redacted, the
ad
hoc
committee willdetermine whether the information therein is relevant to matters
of
importance toMembers
of
Parliament, particularly as it relates to the ongoing study
on
thetransfer
of
Afghan detainees currently under way at the House
of
CommonsSpecial Committee on the Canadian Mission in Afghanistan, and whether the use
of
such information is necessary for the purpose
of
holding the government toaccount. The decisions
of
the
ad
hoc
committee related
to
relevance shall be finaland unreviewable.6. Where the
ad
hoc
committee determines that information is both relevant andnecessary,
or
upon the request
of
any Member
of
the
ad
hoc
committee, it willrefer the disputed information to a Panel
of
Arbiters, who will determine how thatrelevant and necessary information will be made available to Members
of
Parliament and the public without compromising national security, nationaldefence
or
international relations either by redaction or the writing
of
summaries
or
such techniques as the Panel may find appropriate, bearing in mindthe basic objective
of
maximizing disclosure and transparency. The Panel
of
Arbiters should regularly consult with the Members
of
the
ad
hoc
committee tobetter understand what information the Members believe to be relevant and thereason why. The decisions
of
the Panel
of
Arbiters with respect
to
disclosureshall be final and unreviewable.
7. 
The Panel
of
Arbiters can determine, at the request
of
the government, that certaininformation should not be disclosed due
to
the solicitor-client privilege. ThePanel
of
Arbiters, after consultation with the Clerk
ofthe
Privy Council, can alsodetermine, at the request
of
the government, that information constituting Cabinetconfidences should
not
be disclosed.
In
both such cases, the Panel
of
Arbitersshall determine how information contained
in
the documents may be madeavailable to Members
of
Parliament and the public without compromising thesolicitor-client privilege or the principle
of
Cabinet confidentiality, by such
3

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